Julian Lindsay Fernandez v Leessa Karen Fernandez

Hearing dates: 8 July 2025

This judgment was handed down remotely at 10:30 am on 22 September 2025 by circulation to the parties or their representatives by e-mail and by release to the National Archive

Introduction

This is my judgment on an appeal by the claimant (hereafter “the appellant”) against the order of DJ Wales, made on 3 December 2024, on the respondents' application, heard on 16 September 2024, and the handing down of his judgment on 29 October 2024. By that order, the judge removed the appellant as an executor of the wills of his parents, Jean Fernandez and Alexander Fernandez, now deceased, and also removed him, and any other person appointed by him, as trustees of a trust settled by the deceased in 2008 (of which the appellant was not an original trustee). Permission for the appeal was given by Mr Justice Michael Green on 3 March 2025. The appeal was argued before me by Julian Reed of counsel for the appellant, and by Toby Bishop and Hugh Jeffery of counsel for the respondents.

Background

Jean and Alexander Fernandez had six children, one of whom tragically died many years ago. They were survived by the appellant (“Julian”), the first and second respondents (“Leessa” and “Nick”), and the first and (originally) the second defendants to counterclaim (“Vanessa” and “Nigel”). Vanessa has a daughter, Tamsin. Nick has three children, Patrick, Daisy and Felix. Tamsin, Daisy and Patrick are the third, fourth and fifth defendants to counterclaim. Unfortunately, Nigel died in October 2022. For the purposes of dealing with the counterclaim and this appeal, it has not so far proved necessary to appoint someone to represent Nigel's estate. So the second defendant to counterclaim is currently described merely as “The Estate of Nigel Anthony Greystone Fernandez”. The sixth defendant to counterclaim is a person appointed by Julian as a trustee of the 2008 trust. The defendants to counterclaim have played no part in this appeal.

Jean Fernandez died on 29 March 2010 and Alexander Fernandez died on 14 October 2013. At the time of their respective deaths, it was thought that each of them had died intestate. Leessa and Nick took out letters of administration to Jean's estate in June 2013. Her estate included a flat in Courtfield Road, London SW7 (“Courtfield”), then and now occupied by Vanessa. Later in June 2015, Julian found a home-made will of Alexander, dated 1 October 1996. It appointed Jean and Julian as executors, gave pecuniary legacies, and left the residue to Jean. Julian obtained a grant of probate in January 2016. In February 2018, Julian found a home-made will of Jean, also dated 1 October 1996. It appointed Alexander and Julian as executors, gave pecuniary legacies, and left the residue to Alexander.

The claim and the counterclaim

On 10 July 2018, Julian issued the claim in these proceedings, seeking to revoke the letters of administration given to Leessa and Nick, and to obtain a grant of probate to himself of the 1996 will. The claim form stated as follows:

“The Claimant is the Executor of the Will of the deceased dated 1st October 1996. The Defendants were granted Letters of Administration dated 14 June 2013 on the basis that the deceased died intestate. The Will has since been found and the Claimant seeks revocation of the Letters of Administration and an Order that probate is granted to him.”

Leessa and Nick defended the claim for revocation of the letters of administration to Jean's estate, but only on the basis that they put Julian to proof of the validity of her will, and would cross-examine the witnesses at trial. They put forward no positive case of invalidity (see CPR rule 57.7(5)). They accepted that, if the will were pronounced for, the grant made to them should be revoked.

They also made a counterclaim, later amended, which amongst other things sought the removal of Julian as executor of both wills, and also as a trustee of the 2008 trusts. The counterclaim stated in part:

“5. The real issue between Julian and the Defendants in this case in respect of the administration of their late parents' estates is not as to the validity of [Jean's] Will (or as to the validity of [Alexander]'s Will) in that, in the events that have happened, the distribution of the estates on intestacy is not significantly different to the distribution under either or both wills (and as between Julian and the Defendants as beneficiaries would be identical).

6. The question of substance to be determined is rather as to whether the estates of [Jean] and [Alexander] should be administered (or in the case of [Alexander]'s estate, should continue to be administered) by Julian, as he contends they should or whether, as the Defendants contend, for the reasons set out below:

a. the administration of both estates should be completed by a single independent administrator; and

b. new independent trustees should also be appointed to replace Julian and Philip George (the sixth defendant to counterclaim, ‘Mr George’) as trustees of a trust declared by [Jean] and [Alexander] in 2008 (‘the Trust’) for the benefit of the Defendants and their 3 siblings (referred to collectively below as ‘the Children’).”

Paragraph 24B of the counterclaim alleged that interim accounts for Alexander's estate produced by Julian were materially inaccurate and inconsistent with other documents. They allegedly disclosed that Julian had received unauthorised sums out of the estate or otherwise misapplied estate assets for his own benefit. Paragraphs 24C and 24D made allegations in relation to Alexander's MG motor car, and in relation to a complaint to police that Nick had stolen it or obtained it by fraud (in which the police declined to become involved). Paragraph 24E of the counterclaim made allegations that Julian had not kept the beneficiaries of Alexander's estate informed as to developing one of the estate's assets, the paddock land adjacent to the former family home, Seathrift. Paragraph 25 set out some 14 issues said to be remaining to be determined between Julian and the beneficiaries of Alexander's estate. Some of these issues involved allegations by Nick and Leessa against Julian of wrongful behaviour as executor. Others involved allegations by Julian against Nick and Leessa of wrongs done by them to the estate.

Paragraph 26 said:

“By reason of Julian's conduct in relation to the same as set out in paragraphs 23 to 25 above and by reason of Julian's untrusteelike conduct more generally in relation to [Alexander]'s estate (which has been characterised by unjustified hostility to the Defendants, and at least until recently also to Vanessa, unfairness, secrecy, self-interest, highhandedness and a general disregard of his duty to act in the interests of all the beneficiaries of the estate) and [Jean's] estate and in relation to the Trust (as set out below):

a. the Defendants have now lost all trust and confidence in Julian either as the personal representative of [Alexander]'s estate or as a potential personal representative of [Jean's] estate; and

b. in the premises it would be in the interests of the proper administration of [Jean's] estate and of [Alexander]'s estate and the welfare of the beneficiaries of those estates if a single independent professional administrator were appointed in place of Julian (and in place of the Defendants in respect of [Jean's] estate).”

The counterclaim went on to make allegations concerning the 2008 trust created by Jean and Alexander, and, in particular, that as executor of the sole surviving trustee of the trusts (Alexander) he appointed himself and the sixth defendant, a friend of his, as trustees. The counterclaim further alleges that Julian intimated that he was minded to appoint the trust funds to himself, and refused to give Nick and Leessa any information about the trust. Paragraph 40 said:

“By reason of Julian's conduct in relation to the Trust and in relation to [Alexander]'s estate and [Jean's] estate (as set out above), the Defendants have now lost all trust and confidence in Julian as a trustee of the Trust.”

The prayer of the counterclaim was in paragraph 43, and read as follows:

“In the premises by way of counterclaim the Defendants seek the relief set out below.

a. Pursuant to s.50 of the Administration of Justice Act 1985 orders:

i. for the removal of the Defendants and (in so far as he has any right or claim to be entitled to a grant in relation to the same) also Julian as personal representative of [Jean's] estate and the appointment of an independent professional administrator in their place; and

ii. for the removal of Julian as executor of [Alexander]'s estate and the appointment of an independent professional administrator in his place (being the same person as is appointed to administer [Jean's] estate).

b. And further:

i. an order that Julian do deliver full estate accounts of his dealings with the assets of [Alexander]'s estate and of his administration of that estate from the date of [Alexander]'s death to the other beneficiaries of that estate and the administrator of that estate appointed pursuant to this...